How jointly owned property passes on death, the right of survivorship, how to sever a joint tenancy, IHT implications, and how to update the Land Registry.
This guide is part of ProbateHelp's Estate Assets guide cluster.
Also searched as: tenants in common; tennants in common; tennants in common vs joint tenants.
Frequently asked questions
Can I change from joint tenants to tenants in common without my partner's agreement?
Yes. Severing a joint tenancy is a unilateral act — you do not need the other owner's consent. You serve a written notice of severance on the other owner, then submit Form SEV to HM Land Registry to register a Form A restriction. There is no fee. Once the restriction is registered, a disposition by a sole proprietor under which capital money arises normally cannot be registered unless the proprietor is a trust corporation or the court authorises it; in an ordinary sale or mortgage, another trustee is commonly appointed.
Does changing to tenants in common affect our mortgage?
Severance changes the beneficial ownership, not the registered legal owners or the borrowers' obligations under the mortgage. Check the mortgage terms and take conveyancing advice about any notice, consent or later transaction requirement. What changes is what happens to the beneficial interest on death: it can pass under a will or the intestacy rules instead of by survivorship.
What happens if one of us dies without a will and we are tenants in common?
Your share passes under the England and Wales intestacy rules, not to your co-owner automatically. If you leave a spouse or civil partner and descendants, the spouse or civil partner receives the personal chattels, the £322,000 statutory legacy and half the remaining estate; the descendants share the other half. If there are no descendants, the spouse or civil partner receives the whole estate. An unmarried partner has no automatic intestacy entitlement; the statutory family order then applies. A valid will can direct the share instead.
We hold as joint tenants. Can I leave my share of the house to my children in my will?
No. As joint tenants, the right of survivorship overrides your will. Whatever you write in your will about the property, your share passes automatically to the surviving co-owner on your death. To leave your share to your children, you must first sever the joint tenancy and become tenants in common, then ensure a valid will disposes of the resulting share as intended.
What is a Form A restriction and why does it matter?
A Form A restriction is an entry on the Land Registry title register. It normally prevents registration of a disposition by a sole proprietor under which capital money arises, unless the proprietor is a trust corporation or the court authorises the disposition. In an ordinary sale or mortgage by a sole surviving owner, another trustee is commonly appointed so the beneficial interests can be overreached into the proceeds. The restriction protects those interests in the capital money; it does not guarantee that a sale must wait until the estate administration is complete.
We own the property in unequal shares. How do we record this?
Record the intended shares clearly, commonly in a declaration of trust (also called a trust deed), and take advice on the right document. If spouses or civil partners living together are beneficially entitled to the property and its income in the same unequal shares, they can use Form 17 to ask HMRC to tax those actual shares rather than the 50/50 default. HMRC must receive the declaration and supporting evidence within 60 days beginning with the declaration date.
Is there a fee to change from joint tenants to tenants in common?
HM Land Registry charges no fee for registering a Form A restriction on a severance. However, if you use a solicitor to draft the notice of severance and submit the form on your behalf, you will pay their professional fees, which vary between firms. You can do it yourself using Form SEV, which is available free on the gov.uk website.
We are unmarried. Which ownership type protects us better?
Neither type answers every protection question on its own. Tenants in common lets an owner direct their share by will, but without a valid will an unmarried partner has no automatic intestacy entitlement. Beneficial joint tenancy gives the survivor the interest by survivorship, but the deceased cannot direct a separate share by will. Take advice on the ownership, wills, mortgage and what should happen after either death.